Asche v. Bloomquist

• Decision Date: 14 March 2006
• Docket Number: No. 32942-5-II.,32942-5-II.
• Citation: 133 P.3d 475,132 Wn. App. 784
• Court: Washington Court of Appeals
• Parties: Richard and Helen ASCHE, individually and as a marital community, Appellants, v. Melany BLOOMQUIST, and Steven Chobot, individually and as a marital community; Kitsap County, a political subdivision of the State of Washington; and Cindy Baker in her official capacity as Director of Kitsap County Department of Community Development, Respondents.

Page 475

133 P.3d 475

132 Wn. App. 784

Richard and Helen ASCHE, individually and as a marital community, Appellants, v. Melany BLOOMQUIST, and Steven Chobot, individually and as a marital community; Kitsap County, a political subdivision of the State of Washington; and Cindy Baker in her official capacity as Director of Kitsap County Department of Community Development, Respondents.

No. 32942-5-II.

Court of Appeals of Washington, Division 2.

March 14, 2006.

As Amended April 4, 2006.

Publication Ordered May 2, 2006.

Jennifer Anne Irvine Forbes, McGavick Graves PS, Tacoma, WA, Charles Kenneth Wiggins, Wiggins & Masters PLLC, Bainbridge Island, WA, for Respondents.

David P. Horton, Law Office of David P. Horton Inc. PS, Silverdale, WA, for Appellants.

BRIDGEWATER, J.

¶ 1 Richard and Helen Asche appeal the dismissal of their nuisance and mandamus actions for failure to state a claim. But at oral argument, the Asches confirmed they have abandoned their mandamus claim. We hold that their failure to file a land use petition within 21 days of the issuance of the building permit as required by RCW 36.70C.040 is determinative. Thus, their claims for nuisance, either public or private fail, and their due process actions fail because they did not properly file under the Land Use Petition Act (LUPA). We affirm.

¶ 2 On February 3, 2005, Richard and Helen Asche (Asches) filed a complaint for injunctive relief based on public nuisance and a writ of mandamus against Melany Bloomquist and Steven Chobot (Bloomquists), Cindy Baker as director of the Kitsap County Department of Community Development, and Kitsap County (County). On February 8, 2005, the Asches amended the complaint, to include a private nuisance claim. They wished to stop the Bloomquists from building a house on the Bloomquists' property and to compel the County to issue a stop work order. In the alternative, they sought damages losing their Mt. Rainier view.

¶ 3 The amended complaint alleged that the Bloomquists owned adjoining property to the Asches and had been granted a building permit on September 9, 2004. It further alleged that the Asches did not have notice of the building permit or that the new building would adversely impact their view until after they contacted the builder who had just completed the garage portion of the building on December 6, 2004. The complaint further alleged that when they contacted the County, the County told them not to hire an attorney and that the County would "handle it" without an attorney. Thus, the Asches did not file an action until February, two months after learning their view would be impacted and roughly five months after the building permit issued.

¶ 4 The Bloomquists' lot is rectangular with a 40-foot-wide neck of land extending up a hill. The County calculates the maximum allowable height under the applicable zoning ordinance as the midslope of the property's buildable area. Kitsap County Code (KCC) 17.321C.040. In this case, although no building could be built on the 40-foot neck, the County included that portion in its calculation. The result was that the maximum ridgeline was 221 feet.¹

¶ 5 The Asches argued that the building permit was erroneous because the County misapplied the zoning ordinance and miscalculated the maximum allowable height of the structure. Excluding that neck, the Asches contend that the allowable building height is nine feet lower than the County approved.

¶ 6 On February 18, 2005, the trial court heard the Bloomquists' and County's CR 12(b)(6) motions to dismiss the Asches' claims as barred by the LUPA's 21-day statute of limitations for judicial review. RCW 36.70C.040. The court agreed with the defendants and dismissed all of the Asches' claims. The Asches appealed, but have abandoned their claim for mandamus against Kitsap County.

¶ 7 We review CR 12(b)(6) dismissals de novo. Reid v. Pierce County, 136 Wash.2d 195, 200-01, 961 P.2d 333 (1998). Dismissal is only appropriate if "`it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.'" Haberman v. Wash. Pub. Power Supply Sys., 109 Wash.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987) (quoting Bowman v. John Doe Two, 104 Wash.2d 181, 183, 704 P.2d 140 (1985)). We must also accept the allegations in the complaint and any reasonable inferences as true. Reid, 136 Wash.2d at 201, 961 P.2d 333.

I. LUPA's Applicability to the Bloomquists' Permit.

¶ 8 The Asches argue on appeal that LUPA does not apply to their suit because they lack standing under it. Specifically, they argue that they are not "aggrieved" parties under the statute and therefore cannot invoke the statute's remedy provisions. Br. of Appellant at 10. They also argue that the exceptions in LUPA for a suit for monetary damages apply.

¶ 9 We review questions of statutory construction de novo. City of Pasco v. Pub. Employment Relations Comm'n, 119 Wash.2d 504, 507, 833 P.2d 381 (1992). We look to the statute's plain language in order to fulfill our obligation and to give effect to legislative intent. Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wash.2d 40, 53, 905 P.2d 338 (1995). When faced with an unambiguous statute, we derive the legislature's intent from the plain language alone. Waste Mgmt. of Seattle, Inc., v. Utils. Transp. Comm'n, 123 Wash.2d 621, 629, 869 P.2d 1034 (1994).

¶ 10 Initially, we note that LUPA applies to the issuance of this building permit because the building permit was a land use decision. LUPA is the exclusive means of judicial review of land use decisions. RCW 36.70C.030. Land use decisions are defined in the statute to be a "final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination" on:

(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used. . . .

(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and

(c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. . . .

RCW 36.70C.020(1)(a)-(c). In Samuel's Furniture v. Department of Ecology, the Washington Supreme Court noted that a grading building permit was a final determination for purposes of LUPA. Samuel's Furniture, 147 Wash.2d 440, 453, 54 P.3d 1194 (2002). The court has also specifically noted that "[b] uilding permits are subject to judicial review under LUPA." Chelan County v. Nykreim, 146 Wash.2d 904, 929, 52 P.3d 1 (2002).

¶ 11 Here, the KCC provides that the director of Kitsap County Community Development is the authority for issuing building permits. KCC 21.04.120(A), KCC 21.04.030.² The building permit is not in our record but, presumably, it was issued by the director and therefore represents the local jurisdiction's final determination regarding this piece of property.³ Given that LUPA applies to interpretative decisions regarding application of zoning ordinances to specific property, RCW 36.70C.020(b), it does not matter whether the Asches are challenging the validity of the permit or the interpretation of the County zoning ordinance as applied to this piece of property. LUPA covers both.

¶ 12 Nonetheless, the Asches argue that LUPA does not apply because they do not have standing under that statute. With some exceptions, LUPA is the exclusive means of obtaining judicial review of land use decisions. RCW 36.70C.030(1). Specifically, LUPA does not apply to state agency decisions, to writs of mandamus or prohibition, or to actions for monetary damages. RCW 36.70C.030 (1)(a)-(c). LUPA's stated purpose is to "provide consistent, predictable, and timely judicial review" of land use decisions. RCW 36.70C.010.

¶ 13 LUPA's standing provisions allow a "person aggrieved or adversely affected by the land use decision" to bring a petition. RCW 36.70C.060 (2). The statute then defines that person as aggrieved when all of these conditions are met:

(a) The land use decision has prejudiced or is likely to prejudice that person;

(b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;

(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and

(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.

RCW 36.70C.060(2)(a)-(d). Our Supreme Court has interpreted these requirements to be similar to the Administrative Procedures Act standing provisions, which require an injury in fact and apply a zone of interest test. Nykreim, 146 Wash.2d at 937, 52 P.3d 1. The zone of interest test focuses on whether the ordinance intended that agency to protect the party's interest and is not intended to be especially demanding. Nykreim, 146 Wash.2d at 937, 52 P.3d 1.

¶ 14 Here, the first element, that the land use decision prejudiced the Asches, is met. They lost their view of Mt. Rainier when the Bloomquists began building their house under the permit's authority. The last element is also met. The KCC provisions do not specify an appeal process for building permits. KCC 21.04.030. The closest analogous code provisions indicate that an applicant can appeal ministerial decisions, but it does not provide for appeals by neighbors. KCC 21.040.060. Accordingly, there was no administrative process for the Asches to exhaust.

¶ 15 The Asches contend, however, that the LUPA can provide no judgment in their favor that would redress their loss of view because LUPA does not provide injunctive relief. The County responds that LUPA allows a...